RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01819
BRANCH OF SERVICE:  Army	BOARD DATE:  20150130
SEPARATION DATE:  20050115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-6 (Heavy Wheel Vehicle Operator) medically separated for low back pain (LBP).  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “degenerative disk disease…” to the Physical Evaluation Board (PEB) IAW AR 40-501, and no other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain…” as unfitting, with no rating (--%), indicating the condition existed prior to service.  The CI appealed to the Formal PEB, but then withdrew the request for a formal hearing, and instead requested reconsideration based upon submitted evidence.  A Reconsideration PEB (Recon PEB) adjudicated the same diagnosis (chronic LBP), but rated 10% disability due to service aggravation; the case was adjudicated with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Recon IPEB – Dated 20041216	VA* - (~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…S/P Diskectomy…	5241	10%	S/P Spine Fusion	5241	10%	20050225	
			Chronic … Radiculopathies	8599-8520	10%		
Other x 0	Other x 0	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050324 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Low Back Pain.  The narrative summary (NARSUM) notes the CI was an activated Reservist with a long history of back problems, including lumbar disc surgery in 1990 and lumbar fusion in December 1992.  He was cleared for full military duties by his treating civilian orthopedic surgeon in January 2002 and was mobilized on 7 December 2003.  During deployment, the CI experienced LBP with radiation down his left leg while throwing a chain overhead and was evacuated from theater in July 2004 due to LBP.  Orthopedic evaluation on 16 July 2004 noted the pain was a dull pain that radiated to the left thigh with prolonged sitting and was increased by wearing body armor.  Back range-of-motion (ROM) was full flexion (normal 90 degrees) with extension of 20 degrees (normal 30 degrees).  Lower extremity (LE) strength, sensation, and reflexes were normal with no tenderness to palpation (TTP) and negative straight leg raise (SLR) testing.  Lumbar magnetic resonance imaging was ordered but was non-diagnostic due to the presence of the surgical hardware.  The examiner recommended a computed tomography (CT) myelogram, but the CI declined.  Physical therapy (PT) evaluation on 19 July 2004 noted no radicular symptoms were present and the examination showed decreased ROM described as “20% limited all directions”, with pain with flexion, and positive testing for sacroiliac pain, with an otherwise normal exam.

At the MEB examination 21 September 2004, 4 months prior to separation, the CI reported LBP that radiated to his left thigh when severe, without any neurological problems.  The MEB physical exam noted a normal gait with no TTP of the spine and normal LE strength sensation, with negative SLR.  PT ROM on 1 September 2004 was flexion of 76 degrees, 80 degrees, 84 degrees with combined ROM of 220 degrees.

At the VA Compensation and Pension (C&P) examination, 25 February 2005, a month after separation, the CI reported intermittent LBP with three flare-ups per month.  He reported radiation of the pain down the back of his left leg and numbness of all five toes, without other neurological symptoms.  The examiner indicated the CI had no periods of incapacitation in the past 12 months due to the back condition.  The exam noted a normal gait and posture with full ROM of the back and no tenderness of the spine..  Strength and reflexes of the LE were normal.  The examiner noted there were no objective findings of pain, weakness, fatigue, lack of coordination or endurance, or loss of ROM with repetition.  An addendum on 25 February 2005 noted that radiographs showed post-surgical changes without acute abnormalities and LLE electromyography/nerve conduction studies showed chronic L3 and L5-S1 radiculopathies.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the back condition 10%, coded 5241 (spinal fusion) and the VA rated chronic LLE radiculopathies 10%, coded 8599-8520 (analogous to incomplete paralysis of the sciatic nerve).  The Board noted that MEB examination provided evidence to support a 10% rating according to current VASRD spine rating rules in effect at the time of separation based upon flexion greater than 60 degrees, but not greater than 85 degrees, but the C&P exam, a month after separation, did not.  Therefore, the Board reviewed for evidence to support a higher rating than 10%, but there was no evidence of a compensable rating based on ROM criteria alone or muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour.  The Board considered if a higher evaluation was achieved coding with 5243 (Intervertebral disc syndrome) based on incapacitating episodes, but there was no documentation in record of incapacitating episodes of at least one week in the past 12 months to meet the threshold for a compensable evaluation.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

The Board also considered if there was evidence of functional impairment due to a radiculopathy related to the back condition to support a recommendation for additional disability rating.  The CI initially reported symptoms of back pain that radiated to the left LE.  At treatment visits in the service treatment record proximate to separation the CI did not report LLE symptoms but at the C&P exam the CI reported pain radiating down the LLE with numbness of the toes and LLE EMG showed evidence of chronic lumbar radiculopathies.  All service examinations noted normal LE strength, sensation, and reflexes and the C&P noted normal strength and reflexes, without addressing sensation.  Radiating pain from the back condition is subsumed under the general spine rating criteria for disease or injury of the spine “with or without symptoms such as pain (whether or not it radiates)…” and there is no evidence in this case that there was any LE motor or sensory deficit that could be described as functionally impairing at the time of separation.  Therefore, the Board concluded that this condition could not be recommended for additional disability rating.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation or XXXXXXXXXXXXXXX, AR20150009950 (PD201401819)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA